NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

CATHERINE A. PATACCA,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________

2018-1882

______________________

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-17-0574-I-1.

______________________

Decided: March 27, 2019

______________________

CATHERINE A. PATACCA, San Diego, CA, pro se. 

 SONIA W. MURPHY, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOSEPH H.

HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR. 

 ______________________

Before NEWMAN, CHEN, and STOLL, Circuit Judges.

NEWMAN, Circuit Judge.
PATACCA v. NAVY 2

Catherine A. Patacca seeks review of the decision of the 

Merit Systems Protection Board (“MSPB” or “Board”) affirming the Department of the Navy decision to remove her 

from her position as an administrative support assistant.1 

We discern no reversible error in the Board’s affirmance of 

Ms. Patacca’s removal.

BACKGROUND

From May 18, 2015, through June 30, 2017, Ms. 

Patacca was a civilian employee of the Navy at the Marine 

Corps Recruit Depot in San Diego, California, serving as 

an administrative support assistant in the Religious Ministries Office (“RMO”). The RMO provides pastoral counseling and support services, “as Marines and Sailors often 

feel more comfortable speaking with their chaplain concerning personal issues or problems before approaching another health care professional.” Respondent’s Appendix 

(“R.A.”) 66. As an administrative support assistant, Ms.

Patacca worked with Service members seeking counseling. 

Her immediate supervisor was Chief Petty Officer (“CPO”)

Nicholas Gaston, the Religious Ministries Command Chief. 

R.A. 29; 56.

A. Notice of Proposed Removal

On April 19, 2017, CPO Gaston issued a Notice of Proposed Removal for Ms. Patacca. The notice stated three 

charges: (1) delay in carrying out work assignments; (2) 

failure to follow supervisory instructions; and (3) inappropriate conduct.

The first charge, for delay in carrying out work assignments, was supported by two specifications. The first specification recited Ms. Patacca’s failure to timely standardize 

 

1 Patacca v. Dep’t of the Navy, No. SF-0752-17-0574-

I-1, 2018 WL 582834 (M.S.P.B. Feb. 27, 2018) (“MSPB 

Op.”).
PATACCA v. NAVY 3

the RMO’s personnel files and records, despite repeated instructions to do so. The second specification recited Ms. 

Patacca’s recurrent delay in ordering spiritual family books 

for the RMO, which caused an increase of $500 in the cost 

of the book purchase. R.A. 67–68.

The second charge, for failure to follow supervisory instructions, was based on Ms. Patacca’s repeated interruption of Service member counseling sessions, despite having 

been previously disciplined for the same offense. R.A. 68.

The third charge, for inappropriate conduct, recited 

two specifications. The first specification was based on a 

comment to CPO Gaston that he deemed disrespectful and 

discourteous. R.A. 68. The second specification was based 

on Ms. Patacca’s continued objections and refusals to correct certain mailing labels as instructed by her supervisor. 

R.A. 68–69.

CPO Gaston stated in the Notice of Proposed Removal

that Ms. Patacca’s “actions demonstrated a significant lack 

of judgment as a federal employee” and that her “repeated 

failure to follow my instructions also undermines the trust 

necessary to affect a positive employer/employee relationship.” R.A. 69. CPO Gaston stated that her “delay in carrying out work assignments has caused extra time and 

money to be spent unnecessarily” and that her behavior 

“impacts on both the integrity and reputation of the AC/S, 

Religious Ministries’ mission.” Id.

B. Agency Removal Action

Colonel R.W. Jones, as the “Designated Deciding Official,” determined that the charges and specifications were 

“fully supported by a preponderance of the evidence” and 

that they were to be “sustained and warrant [Ms. 

Patacca’s] removal.” R.A. 72–73 (“Decision on Proposed 

Removal”). In evaluating the reasonableness of the action,

Col. Jones described his consideration of the mitigating factors that supported Ms. Patacca, including her nearly nine 
PATACCA v. NAVY 4

years of civilian federal service and her previous “acceptable” performance ratings. R.A. 73. Col. Jones described

the aggravating factors that weighed against Ms. Patacca, 

including her role in “contact with the public [for] both internal and external customers” of the Religious Ministries 

Services. Id. Col. Jones also referred to her prior disciplinary record, for Ms. Patacca had previously served oneday, five-day, and ten-day suspensions for misconduct. Id.

Col. Jones concluded that Ms. Patacca’s actions had “an 

impact on the integrity and reputation of the services provided by the AC/S, Religious Ministries.” R.A. 73–74. He

applied each of the twelve factors from Douglas v. Veterans 

Administration, 5 M.S.P.R. 280, 306 (1981), and explained 

how each factor related to Ms. Patacca’s removal. See R.A.

79–82 (“Deciding Official’s Douglas Factor Consideration 

Worksheet”). Col. Jones ruled that removal was appropriate.

C. Review by MSPB

Ms. Patacca appealed her removal to the Merit System 

Protection Board. The Administrative Judge (“AJ”) held a 

hearing on October 3, 2017. The AJ issued an Initial Decision affirming all charges and specifications against Ms. 

Patacca, and affirming the reasonableness of removal 

based on the adjudicated conduct. R.A. 1–37 (“Initial Decision”).

The AJ first addressed the charge of delay in carrying 

out work assignments. R.A. 3. With regard to the first 

specification, relating to the assignment of standardizing 

RMO personnel files, the AJ found that Ms. Patacca did not 

dispute that she had not timely completed the assignment,

despite having three months to do so and having been

granted an extension of time by CPO Gaston when the first 

deadline was not met. The specification was found supported by the preponderance of the evidence, and was sustained. R.A. 4–5.
PATACCA v. NAVY 5

The second specification, for failure to timely order 

spiritual family books, was also found supported by a preponderance of the evidence. The AJ credited testimony by 

CPO Gaston that Ms. Patacca had repeatedly delayed ordering the books despite instructions to do so. The AJ 

found that Ms. Patacca’s testimony was “inconsistent” and 

that she “failed to adequately explain why she delayed processing these orders,” apart from “asserting this was a low 

priority matter.” R.A. 6–8. The AJ was unpersuaded by 

any of Ms. Patacca’s reasons and “credited CPO Gaston 

over [Ms. Patacca].” R.A. 8.

The charge of “failure to follow supervisory instructions,” based on Ms. Patacca’s interruption of CPO Gaston’s meetings with Service members, was also found 

supported. CPO Gaston testified that Ms. Patacca was “on 

notice not to interrupt meetings prior to the date of this 

specification, February 23, 2017, through various methods 

including a prior disciplinary action.” R.A. 10. The AJ

found that Ms. Patacca had previously been “suspended 

for, inter alia, repeatedly walking in and interrupting CPO 

Gaston as he met with others in his office, without knowing 

or asking to interrupt as instructed.” R.A. 10. The AJ 

found that Ms. Patacca did not “adequately address 

whether she believed” that the reason she interrupted the 

meeting in question “was sufficiently urgent to warrant interrupting this meeting with the sailors, nor did she otherwise adequately explain why she interrupted this meeting 

with the sailors on February 23, 2017.” Id. The AJ sustained this charge.

The AJ next addressed the charge of inappropriate conduct, first reviewing the specification based on Ms. 

Patacca’s comments deemed disrespectful during a meeting with CPO Gaston. As detailed in the Notice of Proposed 

Removal, CPO Gaston testified that when a Service member came to his office, Ms. Patacca, who was meeting with

CPO Gaston asked him, approximately, and “in a disrespectful tone” that the Service member “can enter your 
PATACCA v. NAVY 6

office without being corrected, but I can’t?” R.A. 11. The 

AJ received further testimony from the Service member 

who was present, Petty Officer Third Class (“PO3”) Ruddock. The AJ found PO3 Ruddock’s testimony to be “specific, detailed, consistent with credible testimony of CPO 

Gaston, consistent with his written statement under penalty of perjury, and not inherently improbable.” R.A. 12. 

The AJ found that Ms. Patacca “did not dispute the recollections of CPO Gaston and PO3 Ruddock,” and concluded 

that the “agency has shown by preponderant evidence that 

the charged conduct occurred, and [also] prove[d] by preponderant evidence that the proven conduct was inappropriate.” Id. The charge was sustained.

The second specification of inappropriate conduct arose 

from the dispute over the labeling of invitation envelopes. 

The Notice of Proposed Removal recited that Ms. Patacca 

was instructed to label envelopes for a retirement observance, but was unable to send the invitations as official 

correspondence because her labeling contained a five-digit 

zip code, whereas official correspondence required use of a 

nine-digit zip code. R.A. 13–14; R.A. 68 (Removal Notice). 

The notice also related that Ms. Patacca asked if instead of 

relabeling the envelopes with the nine-digit zip codes, she 

could “simply place postage stamps on the envelopes and 

mail as regular mail, in order to avoid the need to re-label 

and bypass the official mail system.” R.A. 68. Though CPO 

Gaston denied the request, Ms. Patacca continued to protest, and asked Petty Officer First Class (“PO1”) Bloodgood 

to intervene and “argue on her behalf.” R.A. 69. After the 

new labels were prepared, Ms. Patacca is described as having again “protested” and “asked once again to do it [her] 

way.” Id.

The AJ reviewed the specification and the testimony of

CPO Gaston, PO1 Bloodgood, and Ms. Patacca; the AJ determined that “it was within [CPO Gaston’s] discretion as 

senior NCO to ensure that official mail was properly sent 

as official mail through the military post office,” and found 
PATACCA v. NAVY 7

that Ms. Patacca’s “conduct as set forth in this specification 

was improper, unsuitable, and/or detracted from [her] reputation.” R.A. 15. The AJ found that the agency had 

proven by the preponderance of the evidence that the 

charged conduct had occurred and was inappropriate. Id.

The AJ reviewed whether the agency had shown a 

“nexus between the sustained charges and either the employee’s ability to accomplish [her] duties satisfactorily or 

some other legitimate government interest.” R.A. 28. The 

AJ credited the testimony of CPO Gaston and PO3 Ruddock as reflecting the negative impact Ms. Patacca’s behavior had on her workplace. Id.

Ms. Patacca raised several defenses, including discrimination based on “age, sex, race; retaliation for prior protected EEO complaints; disability non-accommodation of 

her sleep apnea, depression, and anxiety; disparate treatment, disability discrimination based on sleep apnea, depression, and anxiety . . . .” R.A. 15–16. Ms. Patacca also 

argued that “the agency had an obligation to place her on 

a ·performance improvement plan (PIP) under Chapter 43” 

and that the removal was therefore “unlawful.” R.A. 27–

28. 

The AJ held that: (1) placement in a PIP was not obligatory; (2) that the removal penalty was consistent with review of all relevant Douglas factors; (3) that the agency 

“had exercised management discretion within tolerable 

limits of reasonableness”; and (4) that the penalty of removal “was consistent with the agency’s September 29, 

2016 table of penalties in the record.” R.A. 28–30. The AJ

observed that Col. Jones had considered Ms. Patacca’s failure to modify her behavior in the workplace based on prior 

disciplinary actions or take responsibility for those actions, 

and concluded that Ms. Patacca was a poor candidate for 

rehabilitation and “no lesser penalty would be appropriate 

or effective.” R.A. 30.
PATACCA v. NAVY 8

Ms. Patacca did not petition the full Board for review; 

the AJ’s decision became the final Board decision. This appeal followed.

D. The Mixed-Case Appeal

For appeals of “mixed cases,” where a federal employee 

asserts rights under both the Civil Service Reform Act and 

federal antidiscrimination laws, the forum for judicial review of MSPB decisions is the district court. See, e.g., Perry 

v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1979 (2017) (“[T]he 

Federal Circuit, while empowered to review MSPB decisions on civil-service claims, [5 U.S.C.] § 7703(b)(1)(A), 

lacks authority over claims arising under antidiscrimination laws, see § 7703(c).”); id. at 1985 (“Judicial review of 

such a [mixed] case lies in district court.”). However, appeals asserting only claims under the Civil Service Reform 

Act are assigned exclusively to the Federal Circuit. See id. 

at 1979 (“If an employee asserts rights under the CSRA 

only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit.”).

Ms. Patacca initially did not waive her discrimination 

claims, and this appeal was transferred from the Federal 

Circuit to the United States District Court for the Southern 

District of California. Order, Sept. 24, 2018, ECF No. 19. 

However, Ms. Patacca then waived her discrimination 

claims, and appeal was returned to this court. Order, Oct. 

31, 2018, ECF No. 21 (reinstating appeal and striking discrimination claims). Because Ms. Patacca has waived all 

her discrimination claims, we have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9).

DISCUSSION

The decision of the Board is reviewed to determine 

whether it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial 
PATACCA v. NAVY 9

evidence.” 5 U.S.C. § 7703(c). The Board’s findings of fact 

are reviewed for support by substantial evidence, and its 

legal determinations receive plenary review. Jones v. Dep’t 

of Health and Human Servs., 834 F.3d 1361, 1366 (Fed. 

Cir. 2016). A finding is supported by substantial evidence 

if there is “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Consol. 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). The petitioner before this court bears the burden of establishing reversible error by the Board. Jenkins v. Merit Sys. Prot. Bd., 

911 F.3d 1370, 1373 (Fed. Cir. 2019).

A.

Ms. Patacca argues that the AJ “failed to take into account many relevant facts” in the course of “reviewing the 

specifications of [her] termination proposal.” Pet’r’s Br. 8. 

Ms. Patacca states that the AJ apparently did not consider 

the email correspondence with CPO Gaston in March 2017, 

where he stated that “he wanted to put the past behind us 

and even assist” Ms. Patacca in becoming named an employee of the year. Id. at 10. The Navy argues that CPO 

Gaston’s intention to assist Ms. Patacca in improving her 

performance in March 2017, a month before his issuance of 

the Notice of Proposed Removal, is not relevant to whether 

the agency had carried its burden to prove the charges. 

The absence of discussion of evidence does not require the 

conclusion that said evidence was ignored or not considered, or that its consideration would have changed the result. “[A]bsent specific evidence indicating otherwise, all 

evidence contained in the record must be presumed to have 

been reviewed by the agency.” Snyder v. Dep’t of Navy, 854 

F.3d 1366, 1373 (Fed. Cir. 2017) (alterations and omissions 

omitted); Gonzalez v. West, 218 F.3d 1378, 1381 (Fed. Cir. 

2000) (“We presume that a fact finder reviews all the evidence presented unless he explicitly expresses otherwise.”) 

(quoting Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906 

(Fed. Cir. 1986)).
PATACCA v. NAVY 10

Concerning the envelope dispute, Ms. Patacca states

that the AJ failed to consider the “fact that [PO1] Bloodgood lied under oath.” Pet’r’s Br. 12. Ms. Patacca states

that contrary to PO1 Bloodgood’s testimony, he did not offer to place stamps on the envelopes; instead it was 

Ms. Patacca who made that offer to CPO Gaston. Id. The 

Navy states that this is irrelevant to Ms. Patacca’s refusal 

to make the requested changes to the addresses. We agree 

that substantial evidence supports the finding of inappropriate conduct.

Ms. Patacca also argues that the Board ignored the reasons why she delayed ordering the spiritual family books. 

Pet’r’s Br. 14. Ms. Patacca states that the “reason for the 

delay was because [she] was following orders from Chief 

Gaston.” Id. She states “[i]t was by Chief Gaston’s direction to postpone this special order and caused it to be delayed,” leading to the additional cost and expense of a tardy 

rush order. Id. The AJ addressed this argument, and 

found that CPO Gaston testified that it was Ms. Patacca’s 

“duty to promptly process this order in January as part of 

her ongoing duties,” and that “in resolving this question of 

whether the appellant was indeed given these instructions

by CPO Gaston as claimed, [he] noted that CPO Gaston’s 

testimony was unequivocal and based on personal 

knowledge.” R.A. 6. The Board found that Ms. Patacca 

“failed to adequately explain why she delayed processing 

these orders after verifying funds were available” and 

“credit[ed] the testimony of CPO Gaston over” that of 

Ms. Patacca. R.A. 7–8.

The credibility of testimony is generally within the 

province of the trier of fact. The “evaluation of witness 

credibility is within the discretion of the Board and that, in 

general, such evaluations are ‘virtually unreviewable’ on 

appeal.” King v. Dep’t of Health & Human Servs., 133 F.3d 

1450, 1453 (Fed. Cir. 1998) (quoting Clark v. Dep’t of the 

Army 997 F.2d 1466, 1473 (Fed. Cir. 1993)); see Crediford 

v. Shulkin, 877 F.3d 1040, 1046 (Fed. Cir. 2017) (“Findings 
PATACCA v. NAVY 11

as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those 

who see and hear them.”) (quoting United States v. Yellow 

Cab Co., 338 U.S. 338, 341 (1949)).

B.

Ms. Patacca also argues that the Board committed errors of law through incorrect application of the Douglas factors. She points to the third Douglas factor, “the 

employee’s past disciplinary record,” as misapplied by the 

Board in terms of both the temporal proximity of her previous disciplinary actions and the similarity of offenses 

with which she was previously charged.

The AJ received testimony from the Navy’s deciding official, Col. Jones, and referred to Col. Jones’ testimony that

he considered that Ms. Patacca had served three suspensions previously and had not modified her behavior despite

the prior discipline. R.A. 29. He testified that he considered Ms. Patacca’s prior suspensions for inappropriate conduct, failure to follow supervisory instructions, and 

dereliction of duty. The AJ cited Col. Jones’ testimony that 

Ms. Patacca “was on clear notice that this type of misconduct would not be tolerated by the agency based on her 

prior discipline,” and that she “continued to engage in a 

pattern of misconduct.” R.A. 30. The AJ concluded that 

Col. Jones properly “considered the relevant factors.” Id.

We discern no reversible error in the AJ’s review of

these factors.

C.

Ms. Patacca also argues that the AJ improperly denied 

her request for a delay in the hearing date. On September 

8, 2017, Ms. Patacca moved for a continuance from the 

scheduled hearing date of October 8, 2017 so that she 

would have additional time to “consult with an attorney 

who will assist with her case.” R.A. 118 (“Appellant Requests Motion for Continuance”). She stated that she had 
PATACCA v. NAVY 12

been in contact with two attorneys but neither was available in the next two weeks or to assist in her representation

at the scheduled time. Id.

The AJ denied the motion, stating that the “unilateral 

request for delay is denied without exception for failure to 

comply with the Board’s requirements,” citing 5 C.F.R. 

§ 1201.55(a), (c). R.A. 120 (“Order Denying Request for Delay”). Subsection (a) states that “[a] party filing a motion 

for extension of time, a motion for postponement of a hearing, or any other procedural motion must first contact the 

other party to determine whether there is any objection to 

the motion, and must state in the motion whether the other 

party has an objection.” 5 C.F.R. § 1201.55(a). Subsection 

(c) provides that “[m]otions for extensions of time will be 

granted only on a showing of good cause.” 5 C.F.R. 

§ 1201.55(c). The record states that the hearing scheduled 

for October 8 was requested by Ms. Patacca on July 14, 

2017; Ms. Patacca did not move for an extension of time 

until September 8, 2017. R.A. 120.

The AJ’s decision to grant or deny an extension of time

is reviewed for an abuse of discretion. See Koch v. SEC, 48 

Fed. App’x 778, 783 (Fed. Cir. 2002) (citing Johnson v. Dep’t 

of the Treasury, 721 F.2d 361, 364–65 (Fed. Cir. 1983)). 

Such discretion must include consideration of the efforts of 

aggrieved persons to obtain the assistance of counsel. In 

turn, the Board’s regulatory requirement for consultation 

with the opponent is not unreasonable. The government 

stresses that despite her pro se status, Ms. Patacca remains subject to the Board’s procedural regulations. See, 

e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 

(2d Cir. 2006) (explaining that despite being entitled to a 

“special solicitude,” a party’s “pro se status does not exempt 

a party from compliance with relevant rules of procedural 

and substantive law” (internal quotation marks omitted)).

We give special attention to pro se litigants efforts to 

obtain representation. However, Ms. Patacca does not 
PATACCA v. NAVY 13

discuss her attempts to obtain counsel or provide any explanation of her non-compliance with the Board’s regulations. On the record presented, we conclude that the AJ 

acted within his discretion in adhering to the hearing 

schedule.

D.

Ms. Patacca argues that the AJ denied her request to 

call additional witnesses “with no just cause,” including 

two witnesses that Ms. Patacca stated were “vital.” Pet’r’s 

Br. 21.

Prior to the hearing, a pre-hearing conference was held 

on September 14, 2017, and witnesses that would be called

at the hearing were required to be identified. R.A. 123–26

(“Order and Summary of the Prehearing Conference”).

Ms. Patacca’s request to testify on behalf of herself was approved, as well as joint requests for CPO Gaston to testify 

about the Notice of Proposed Removal and PO1 Bloodgood 

to testify about his conversations with Ms. Patacca concerning the invitation envelopes. R.A. 125.

The AJ denied Ms. Patacca’s request for five additional 

witnesses, to testify on a range of matters including “her 

good performance and Chaplain Mikstay’s negative view of 

her,” and her assertion that she “works beyond her 

paygrade.” R.A. 125–26. In denying these witness requests, the AJ stated that for each denied witness, he 

“grant[ed] leave to amend the subject proffer(s) within 

seven calendar days” and will “reconsider denied witnesses 

based on a more detailed proffer of their relevance and a 

statement indicating that the requesting party discussed 

and/or attempted to discuss the anticipated testimony with 

the requested witness.” R.A. 126. Ms. Patacca provided 

such information as to two proposed witnesses: Ms. Cece 

Payne to testify as to her role in Ms. Patacca’s termination, 

as an “HR Labor Relations Manager”; and Chaplain Mikstay to testify concerning his role as her supervisor for two 

years and his interest in having Ms. Patacca terminated in 
PATACCA v. NAVY 14

2015. R.A. 127–30 (“Motion for Witnesses”). The AJ denied 

these two requested witnesses, based on Ms. Patacca’s further failure to comply with Board regulations requiring 

prior discussion or attempted discussion with a proposed 

witness of the testimony to be elicited. R.A. 134–35 (“Order”). It is undisputed that such discussion, nor an attempt 

to have such discussion, had not been made.

“‘Procedural matters relative to discovery and evidentiary issues,’ such as the decision to exclude witness testimony, ‘fall within the sound discretion of the board and its 

officials.’” Thurston v. Dep’t of Veterans Affairs, 254 Fed. 

App’x 811, 813–14 (Fed. Cir. 2007) (quoting Curtin v. Office 

of Pers. Mgmt., 846 F.3d 1373, 1378–79 (Fed. Cir. 1988)). 

Such matters are reviewed for an abuse of discretion. Id. 

When the petitioner is proceeding pro se, “[i]mplicit in the 

right of self-representation is an obligation on the part of 

the court to make reasonable allowances to protect pro se

litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Traguth v. Zuck, 710 

F.2d 90, 95 (2d Cir. 1983).

However, as the government points out, the “Order and 

Summary of Prehearing Conference” expressly stated that 

denied witnesses would be “reconsider[ed]” based on a 

“more detailed proffer of their relevance” and an explicit

statement describing compliance with the requirement for 

discussion with the witnesses regarding their testimony. 

R.A. 126. Ms. Patacca does not state that she subsequently

complied with this requirement—she only argues that denial of her witnesses was an abuse of discretion. Pet’r’s 

Br. 21.

Although it is imperative to administrative and judicial

fairness that pro se participants have adequate opportunity to present their side of the case, here the AJ administered reasonable rules, which had been identified to Ms. 

Patacca. It has not been shown that the AJ acted unreasonably or unfairly. See Davis v. Office of Pers. Mgmt., 918 
PATACCA v. NAVY 15

F.2d 944, 946 (Fed. Cir. 1990) (“A determination whether 

the testimony of witnesses should be presented is within 

the sound discretion of the AJ.”).

In the Prehearing Conference Summary, the AJ summarized the testimony stated to be elicited from the excluded witnesses, which included: “LCDR David Jeltema 

who worked with the appellant in 2015–16 to testify about 

the appellant’s statements to him about Chaplain Mikstay’s negative view of the appellant.” R.A. 125. Ms. 

Patacca also requested “CDR Jack Carver to testify about 

the appellant’s statements to him about Chaplain Mikstay 

and CPO Gaston, and Terri Crook to testify that the appellant works beyond her paygrade.” R.A. 125–26. Such testimony was not stated or suggested to relate to the charged 

conduct.

Ms. Patacca has not “carried [her] heavy burden of 

showing that the alleged procedural errors were prejudicial 

and could have changed the outcome of the proceedings below.” Curtin, 846 F.2d at 1379.

CONCLUSION

We have considered all of Ms. Patacca’s arguments, 

and conclude that the Board’s decision is supported by substantial evidence, is in accordance with law, and that the 

AJ did not abuse his discretion in enforcing MSPB rules 

and regulations for hearing procedures. The decision is affirmed.

AFFIRMED

Each party shall bear its costs.